Chapter 10. Discussion

Imprisonment inherently entails isolation of the inmate from the outside world. As such, avenues for legal assistance are fewer and routes to them more complex. These facts alone provide ample scope for disrupted access to legal information, advice and participation in legal processes. Although there is no doubt that being a prisoner brings unique challenges to individuals trying to address their legal needs from within this environment, the object of this report has not been to be critical of the justice system in general, or DCS in particular. Nor has it been to suggest that the current system and practices are the only means by which justice can be done. Rather, the aim of this report has been to demonstrate where, in the nexus between inmate, prison and legal processes, barriers to legal help arise for inmates on the basis of their imprisonment. Through such an analysis it has been possible to identify how opportunities to prevent, identify and/or address legal problems may be facilitated and supported.

As argued in the preceding chapters, whilst prisoners do have opportunities to obtain legal assistance, aspects of their own capacity, the systemic environment, the people who act on their behalf and the cultural milieu operating within the prison environment may weaken the potential of those opportunities to adequately serve inmates' legal needs. The following paragraphs briefly summarise the main issues raised in our analysis.

At an aggregate level, inmates tend to come to prison with complex histories and multiple impairments. In Chapter 6 we argued that the combination of a chaotic lifestyle prior to incarceration with limited financial and personal resources, mental and intellectual disabilities, comprehension difficulties, limited education, and poor skills served to generate legal issues and complicate their resolution. Indeed, with issues often spiralling out of control, imprisonment is often a marker for someone reaching a crisis as well as being a crisis in itself. The subsequent criminal and civil legal processes which surround incarceration place high demands on the capacity of prisoners, a capacity many do not have. Indeed, for many inmates, their personal resources may be in highest demand when they are at their lowest ebb, for example when they are first received into prison.

In Chapter 7, we focussed on the broader systemic environment which inmates must negotiate to address their legal needs. The picture that emerged was of a set of systems, which operated at the limits of their resources and were further tested by tensions between the different components. For example, the resolution of legal problems generally required the welfare and support functions to be offered in prison, but these services were allocated a lower priority than security when resources were scarce. The prioritisation of security concerns meant that welfare and support needs may not be served, or would be delayed. In other cases, the legal needs of prisoners may remain unaddressed because of the incompatibility between the routines of inmates and the schedules of lawyers, often seriously compromising or complicating communications between them. In this way, the sometimes discordant operations of different parts of the systems which manage inmates and resolve legal issues, challenged inmates' ability to effectively and efficiently deal with their legal problems.

Whilst people often seek legal help through third parties in the general community (Coumarelos et al. 2006), it was argued in Chapter 8 that inmates were almost entirely dependent upon third parties whilst in prison. DCS staff, staff from other agencies, friends and families often acted as intermediaries in circumstances where inmates could not facilitate their own legal help. On the one hand, these intermediaries provided essential and useful assistance. On the other hand, our analysis suggested that there were risks that the tasks entrusted to intermediaries may not be fulfilled or may lead to breaches of confidentiality or even exploitation. Further, finding the appropriate intermediary and engaging their assistance is not necessarily simple in prison: pathways to legal assistance lack consistency within and between prisons and the availability of formal information on how to obtain assistance was unreliable. Finally, even when the will to assist was there, those approached by inmates sometimes did not feel sufficiently equipped to meet the inmates' needs.

Finally, prison culture as discussed in Chapter 9 added another layer of complexity to inmates' access to justice. Features of the formal and informal prison culture, such as the oppositional code of behaviour, the naturalising of violence in prison, the conceptualisation of inmates as unworthy of assistance and the promotion of passivity may undermine the reporting of offences against inmates and/or legitimises the withholding of assistance. Consequently, even when everything else is functional (e.g. inmate capacity, the systemic environment and intermediaries), the subcultural resonances may suggest to inmates that the pursuit of justice is unnecessary, unpalatable or futile. Further, such perceptions persisted despite the heterogeneity in inmates' actual experiences of assistance with their legal problems.

This report has discussed, largely in isolation from each other, how inmate capacity, the systemic environment, the use of intermediaries and the prison culture can give rise to barriers to an inmate's ability to access justice. However, we have identified a number of broader themes that describe the effects of the interplay between these elements. These broader themes may be summarised as:

the inverse relationship between accessibility and quality of legal assistance/information

the fit between prisons, prisoners and opportunities for access to justice

the relationship between prison, disempowerment and meeting legal needs

the targeting and timing of legal assistance.

The discussion below will expand on these concepts and relate them to the data presented in the previous five chapters and will consider the implications for policy. This will provide a framework within which the ability of prisoners to access justice may be considered and potentially improved. The final conclusion will then summarise how strategies for improving inmates' access to justice may be appropriately targeted across the different stages of incarceration.

Accessibility and quality of legal help

Our analysis has demonstrated that access to legal assistance was variable among inmates, in particular, the greater the isolation of an inmate, the harder it was for him or her to access legal assistance (Chapter 7). Isolation may be geographic or a function of inmate classification (including remand versus sentenced). For example, inmates on protection or in segregation face the biggest challenges in accessing assistance, followed by those in maximum security (with no association restrictions). Inmates located in rural prisons also experience difficulties accessing the range of services required to meet their legal needs. Beyond these barriers, however, was the broader issue of the quality of the assistance available to inmates for their legal needs.

Inmates are able to access assistance for their legal problems from formal sources (e.g. lawyers and legal information resources) and informal sources (e.g. friends, family and other inmates). The discussion in the previous five chapters, however, suggests an inverse relationship between accessibility in prison of assistance for legal problems and the quality of that assistance. This was observable in all aspects of legal assistance, affecting access to legal information, advice, and participation in legal processes.

Inmates' experiences with obtaining legal information from prison libraries were indicative of this inversion. Libraries are located on prison grounds which, in principle, make them easy to access. However, the limited opening times (themselves subject to further reductions because of staff shortages and lockdown) and the completeness and currency of the information held therein, undermines their utility. Further, the process for loaning materials from the main law library was slow and was contingent upon requests being clearly articulated by the inmate, a challenge for many within this population. Accordingly, prison libraries have the potential to provide an opportunity for inmates to independently obtain quality legal information, but at the time of our interviews, inadequate access and resources weakened this potential.

Similarly, verbal legal advice and information also suffered through an inversion between access and quality. For instance, expertise in the form of lawyers and legal assistance services were largely located outside prison and could be difficult to contact by telephone or to arrange face-to-face meetings (Chapter 7). When they did occur, advice sessions with lawyers were often said to be too brief to obtain the advice and reassurance needed, or for the inmate to give proper instructions. In contrast, other inmates were an accessible resource in ready supply and easy to access for most inmates. However, reflective of the theme of an inverse relationship between access to, and quality of, legal information and advice, although their proximity makes them an attractive alternative, the reliability of the information they can offer is uncertain.

Problems associated with obtaining information about pathways to legal assistance and legal processes from DCS staff could also be understood through the intersection of access and quality. In Chapter 8 it was argued that some DCS staff, especially custodial officers located in the wings with inmates, confessed to having only rudimentary knowledge of how inmates might obtain legal assistance,64 gleaned from experience rather than through formal training or resources on this issue. Often the officers would refer inmates to welfare staff who may have greater knowledge but whose availability was considerably less by comparison. Induction videos and handbooks were also opportunities for assistance but accessibility was variable. Hence once again the better informed assistance was located, in at least one sense, at a greater distance from inmates than less informed sources, and that closest to inmates was not supported and/or maximised.

Policy implications

Generally speaking any strategy aimed at improving inmates' access to justice would need to improve the quality of information that is readily available to inmates and/or improve the accessibility of higher quality sources.

One strategy would involve improving the quality of the written information located within prisons. To this end, and during the conduct of this research, the accessibility of plain language legal materials has been vastly improved in NSW prisons. The State Library and DCS have placed LIAC (Legal Information Access Centre) materials in all NSW jails. LIAC materials are plain language legal information on a range of civil, family and criminal law topics, which are available through public libraries in NSW. Prison libraries have been added to the LIAC network. The service also involves training relevant staff and inmate clerks in the use and the holdings of prison libraries. The course is organised through an external body so completing the course will provide a recognised qualification for the trainee. Part of the training is in the use of LIAC materials.65

At the time of the interviews (February 2006), there were seven inmate librarians participating in the LIAC program. The added benefit of providing LIAC resources in prison is that the same resources are available at public libraries in the community. This potentially allows for some continuity in the information that is available to people when they are in or out of prison. Whilst this initiative will help address inmate legal needs, consideration must also be given to meeting the needs of those inmates who lack the capacity, through cognitive impairment or poor literacy skills, to use written resources.

Further examples of where quality legal advice has been made more accessible to inmates include the PLS visiting legal advice service and the placement of the LawAccess telephone number on the inmates' phone cards. The implementation of a specialist civil (and family) law advice service to prisoners would also address this need; a strategy that has recently been piloted in women's prisons. This option is discussed in greater detail later in this chapter. Another strategy to improve the knowledge base of those closer to inmates, such as prison welfare staff, has been a project where the NSW Office of Fair Trading (OFT), the Energy and Water Ombudsman NSW, the Office of State Revenue and others provided training to such staff so they could better inform and assist inmates about debt issues (OFT, 2006, p. 28; NSW Sentencing Council, 2006, p. 37). Accordingly, improving access to quality advice/information or improving the quality of assistance provided by sources easily accessed by inmates may address some of the barriers raised by the separation of prisoners from the services that provide legal assistance.

Prisoners and opportunities to access justice

In this section, we explore some of the incongruities that exist between inmates' legal needs, their capacity to address that need, and the systems in place to facilitate legal assistance. The mismatches seem to occur between systems (the correctional and legal systems), priorities (security and welfare), personal capacities (e.g. what is required of inmates to meet their legal needs) and the apparent realities of their environment (e.g. prison culture). Three main areas of difficulty have been identified: communication, capacity, and prison routine or customs.

Communication: capacity versus requirements

Problems with communication were often implied by interviewees in this study when describing the barriers to inmates gaining legal assistance and participating in legal processes. Chapter 6 discussed at length the often compounded difficulties inmates have with both verbal and written language. Through combinations of organic comprehension difficulties, such as those generated by drug and/or alcohol abuse or brain injury, insufficient education, and/or stress and anxiety, inmates can struggle to understand and to make themselves understood. Yet there are many aspects of obtaining legal assistance which fail to take into account these problems.

Firstly, much of the communication with lawyers takes place over the telephone, a communication method not conducive to ameliorating the effects of poor communication skills. Similarly, limited literacy and poor education are also issues for many inmates, yet access to legal information and participation in the legal process is often contingent upon being literate and skilled at filling in forms. The process for obtaining legal information from the law library at the MRRC from a remote jail provided one example of this. The apparent exclusion of intellectually disabled inmates from programs that are required for parole because of the emphasis on written materials is another example.

Secondly, as noted in Chapter 7, the majority of opportunities for receiving legal advice are brief. Inmates often do not have much time to interact with their lawyer whether it is via the telephone or in person and yet, as described in Chapter 6, many inmates have a limited ability to communicate succinctly and effectively with their lawyer. Consequently, with generally poor communication skills, inmates would benefit from longer interactions with their legal advisers.

Finally, information on how to obtain legal assistance from within prison is often variable both within and between prisons, and is at times even absent (Chapter 8). As a result, inmates may miss opportunities to obtain legal information, advice and participate in legal processes, especially if they are new to a particular prison or the prison environment in general. It was argued in Chapter 6 that there was a degree of assumption around inmates' knowledge of the justice system because of their prior experience of it. However, in reality, this knowledge was often only partial (mainly around their own criminal matter and infrequently around civil or family law issues) and may have been impaired by comprehension and cognitive issues. In other words, there appeared to be a lack of fit between inmates' information needs and the provisions made for those needs.

Capacity: supply versus demand

Capacity was another area where there was an inequality between the lived experience of prisoners' and the opportunities available to address their legal needs whilst in prison. For example, in Chapter 6 we described the often depleted personal and financial capacity of inmates at the very times when they face overwhelming demands to address their legal needs. So while legal processes represent an opportunity to meet their legal needs, participation may require tenacity and a set of comprehension skills beyond that of many inmates.

Further, due to their incarceration, inmates often required additional resources, such as the assistance of their friends and family to address legal issues (see Chapter 8). However, the common practice of moving inmates between prisons also takes them away from their external supports (including their lawyer). Further, the cycle and nature of criminal activity and its consequences can often leave inmates without any support network at all, distant or otherwise. Accordingly, at once, imprisonment in some respects necessitates more capacity but at the same time diminishes their resources through the inherent isolation, stress, anxiety, depression (Chapter 6) and lack of autonomy (Chapters 8 and 9) that incarceration can bring.

It was demonstrated in Chapters 7 and 8 that opportunities for access to justice were undermined by lack of systemic capacity. For instance, in order to access legal information or legal advice, inmates often needed to go through intermediaries. However, the prioritising of security over support functions often meant that the staff that may be needed to facilitate an inmate's visit with a lawyer, get their lawyer's telephone number put onto their phone card or to help them access the library may be sacrificed for a security matter (Chapter 7). Chapter 7 also detailed the challenged resources of the public legal profession. Consequently, whilst technically assistance with a legal problem was available, the distribution of resources within the systemic environment meant that, at times, in reality these opportunities were unavailable.

Prison routine: procedures/conventions versus practicalities

In the discussion of the systemic environment (Chapter 7), the routines of prison and the practices of service providers were noted to be, at times, incompatible. For example, security measures such as a lockdown, meant that inmates were not available at the times when their lawyers were onsite. Similarly, inmates were not able to access telephones at times when lawyers were out of court, and the lawyers could not easily return calls if an inmate left a message. Accordingly, the discordance between the formal routines to which prisoners must adhere and the hours of operation of agencies that carry out legal processes or provide legal assistance serve to undermine inmates' ability to address their legal needs.

The informal conventions or the subculture of the prison environment also clashed with some avenues of legal redress. Broadly speaking, difficulties may arise when one inmate wrongs another and approaches custodial staff for assistance with any legal problem. It was argued that inmates may not pursue certain avenues of redress available to them because they ran counter to behaviour that was appropriate according to the prison subculture. Inmates and officers are understood in the prison subculture to be inherently and irrevocably in opposition to each other. Consequently, going onto protection or informing prison authorities of an assault against one inmate by another, for example, constitutes a betrayal of inmate 'brotherhood'.

Moreover, some inmates felt they could not freely approach officers to request assistance with any legal (or any other) problem because other inmates may interpret this as informing or just being too close to 'the enemy' as it were. Consequences for these courses of action include stigmatisation or violence. Accordingly, seeking legal assistance from an officer is considered unattractive or worse, unsafe, in the informal code of behaviour for inmates. Moves towards dual roles for officers (i.e. inmate management and welfare), whilst improving accessibility to assistance for inmates, may be problematic with the current informal frameworks that structure social relations within prison.

Finally, the tendency for inmates to have more informal arrangements for child custody, financial transactions, and housing also presents as a challenge to later successfully using the law to resolve these issues. In Chapter 6 a range of circumstances were outlined concerning how inmates who have informal arrangements are vulnerable to having difficulties enforcing or even negotiating those arrangements whilst in prison.

In summary, our analysis suggests that the opportunities for inmates to access justice or to address their legal needs were at times misaligned with the lived experience of prison. Mismatches were observed between the communication avenues most effective for inmates and those most often used to obtain legal assistance, the personal and systemic resources available to inmates and pathways to legal assistance, and the daily realities of inmates and the operational practices of legal services. A better fit between these various components would serve to improve access to justice and maximise the efficacy, services and availability of people who assist inmates.

Policy implications

Being aware of the points at which opportunities for inmates to access justice are compromised or are missed because they do not engage with the realities of prison life can assist stakeholders to identify how to maximise the support they provide to this group. In terms of the three main areas discussed above, a number of strategies should be considered.

Firstly, the means of communication required needs to take into account the preferences and skills of the inmate. For example, inmates prefer face-to-face communication, and may require more time to digest complex legal information in order to make informed decisions and give instructions to their lawyer. Prison inmates may also need assistance with reading complex legal documents, but assistance that does not risk confidentiality, embarrassment or exploitation (see Chapter 8). Inmates also require, especially at the initial stage of their incarceration, clear, accurate, detailed and reliable information about how to get assistance with their legal needs. Currently, pathways to assistance are obscured by inconsistency in the provision of assistance, and by unreliable or missing formal information.

Secondly, there is clearly a relationship between resources (both personal and systemic) and inmates' ability to take advantage of opportunities for legal assistance. Increasing the skills of inmates (for example, by giving them effective access to legal information via the library or in the form of training or education) or tailoring the demands made on their capacities (for example, by providing accessible information about their legal matter, and sufficient time to discuss this with their legal adviser) could serve to narrow the gap. In some jurisdictions, law students have been involved in providing face-to-face 'court readiness programs' and other forms of legal information and assistance to prisoners, as part of their studies (e.g. Naylor & Jacobson, 2007; Lajeunesse, 2002).

From the systemic resources point of view, our analysis does point to considerable strain on Legal Aid services and those provided by DCS staff. Clearly, the provision of more or better resources in terms of equipment, telephones, and staff are subject to budget concerns, however, our data suggest that there may be a synergistic benefit to be exploited from directing resources towards inmates' welfare concerns. For instance, more resources directed towards inmates' legal needs may ease the strain on custodial staff, because inmates are more settled and require less intensive behaviour management. As Lajeunesse (2002) observed in her study of access to justice in Canadian federal prisons:

Not providing adequate services has profound impacts … Respondents indicated that access to legal counsel would likely result in better institutional behaviour due to lessened feelings of frustration and powerlessness among inmates. This in turn would lead to an improved ability among inmates to focus on their programming needs while incarcerated. Presently, as evidenced by respondents in this research, there are multiple problems associated with lack of access to legal counsel …. This builds up resentment against 'the system' adding to any earlier perceptions of injustice on the part of some inmates. (Lajeunesse, 2002, p. 7)

Consequently, there may be a degree of offsetting the increased supply of resources to welfare issues to the lowering of demand for custodial functions. Similarly, assisting inmates to address outstanding non-criminal issues before their release may be more efficient than trying to address them post-release, at a point when inmates have multiple demands on their personal resources in order to re-establish their lives and they may not be so easy to locate and assist.

Having advice services via AVL can circumvent the need for lawyers to attend prisons and increase time spent in advice sessions because inmates are assembled prior to the link being activated. Accordingly, where support activities adjust to, or circumvent, the impact of security functions, inmates are able to continue receiving support in the face of prison-imposed restrictions.

Thirdly, services and functions both within and external to DCS need to engage with the DCS security operations and inmates' routines. Security will, more than likely, remain the foremost concern in prisons and cannot be ignored by legal service providers if it has the potential to disrupt support services. In negotiation with DCS, perhaps services could be made less vulnerable to security activities or incorporate sufficient flexibility so that consistent service may be maintained. An example of this in the current study was where the chaplain, official visitors and welfare officers were able to go to the wings/pods to see inmates who, due to their prisoner classification, could not easily leave the wing to seek assistance (see Chapter 7). The main point here is that, because the inmates did not have to wait for an escort to meet with these people and receive help, the service provision was less vulnerable to security requirements. External services could also provide opportunities that take into account the current strictures governing prison life, such as the hours that the telephones operate and routine lockdown (Chapter 7). For example, a number of inmates mentioned how they could ring or leave a message on their private lawyer's mobile phone. That said, the expense of contacting a mobile number must also be taken into consideration.

Finally, strategies designed to assist inmates with their legal problems need to take account of prison culture in order to be effective. This is not to say that this culture and the subjective positions taken up by inmate and officer are immutable or universally experienced. Rather, the issues discussed in this analysis are those which our research suggests affect access to justice and consequently may affect strategies concerned with improving it. Culture is difficult to change particularly when its logic is reinforced by a range of systems, practices and ideologies.

To simultaneously avoid reinforcing a culture (or subculture) yet effectively engage with the limitations it imposes, is a dilemma that many service providers face in a range of contexts (e.g. domestic violence (Davis, 2000), HIV prevention (Parker et al., 2000)). Strategies that run counter to the informal order of social relations, such as custodial officers taking on increasing responsibilities in inmate support, may therefore require a period of adjustment and/or modification. Officers would also need to be adequately resourced so they can best support and refer inmates who need legal and other assistance. In Chapter 9 it was demonstrated how officers may still provide assistance without leaving the inmate vulnerable to violence or stigmatisation, by strategically establishing modes of interaction with them. The important message here is that agencies understand the current limitations and assumptions that aspects of prison culture bring and engage with them when developing service provision strategies.

Similarly, the tendency towards having informal arrangements around important issues such as housing, finance, and child care needs to be addressed, particularly taking into account the reluctance to use, or a mistrust of, the formal processes, as well as a lack of knowledge of those processes. The assumption that repeat or long-term inmates have a good knowledge of legal and/or administrative processes may be misplaced as many inmates habitually operate outside formal processes and are usually ignorant or, at least, mistrustful of them. Pre-release basic instruction on how inmates may manage these issues through formal processes and the benefits that these processes may bring, may assist them in being able to preserve their rights and become accustomed to using the law to their own advantage. Putting such knowledge into practice may also assist in improving their legal position by having formal supporting documentation.

Disempowerment and meeting legal needs

There is already much written about the disempowerment of the inmate in a prison setting and the essential dominance of prison authority over the prisoner (see for example, de Viggiani, 2007). However, this section will discuss the disempowerment in the prison setting as it relates specifically to meeting legal needs.

One of the strongest contributors to the sense of disempowerment surrounding inmates meeting their legal needs was the pervasive necessity for intermediaries, as described in detail in Chapter 8. From booking an appointment with the PLS visiting legal advice clinic, to having their belongings retrieved and/or stored, inmates rely heavily on others to carry out tasks on their behalf. The opportunities for an inmate to conduct autonomous research and to take action to address their legal needs are minimal, with the inmate being frequently dependent upon others, plainly a potentially disempowering position to be in. The risks associated with such a vulnerable position were also described: a small number of inmates suffered financial loss, other inmates had their privacy breached through exploitative relationships with their intermediaries and a substantial number of inmates were unskilled or even felt deskilled concerning how to deal with authorities and how to actively resolve their legal problems.

Chapter 8 also contained evidence of the inconsistency of assistance received through intermediaries. Inmates were not sure, from one prison to the next, from one staff member to the next or from one inmate to the next, that the information and assistance they receive will ultimately get them the legal assistance they require. Inmates may feel a further sense of disempowerment as the ground upon which they pursue pathways to legal assistance repeatedly shifts, consequently undermining their development of knowledge and the confidence to know that their actions will bring a satisfactory outcome.

This sense of disempowerment, which can result from the loss of personal autonomy, can also be seen in the adoption of the culture of compliance, as described in Chapter 9. A key component of the compliant inmate identity is conformity with the formal culture of the prison and unquestioning submission to prison routines and structures. We argued that this persona is promoted through the reinforcement of passive behaviour and the discouragement of more confronting behaviours, which may not attract assistance when it is needed. Non-conformity, however, also had a mutually reinforcing relationship with disempowerment in the realm of the law. In Chapter 6 it was asserted that previous experience with the criminal law, which is perceived as working against the inmate, further diminished their willingness to use other legal processes (e.g. civil and family law) to their benefit. Further their lack of previous experience in using the civil law processes, because they have habitually by-passed the law in arranging their affairs, means that inmates often opt out of initiating or participating in legal processes that could benefit them.

The relationship between inmates and their lawyers was another potential site of disempowerment. Our interviews contained many complaints from inmates about their representation by Legal Aid and the ALS, and, to a lesser extent, by private solicitors. It was not possible in this research to examine the validity of such complaints as the sample of inmates was clearly biased towards those whose criminal matters have resulted in a period of incarceration. However, in Chapter 7 it was suggested that at least some of the dissatisfaction expressed was derived from the lack of input inmates felt they had in their case — a lack of input caused by the limited access inmates had to their lawyers whilst in prison. More specifically, some interviewees felt that lawyers did not have sufficient time to spend with inmates (particularly those with limited comprehension or cognitive capacity) to get a complete picture of their criminal matter and to discuss possible strategies and outcomes. It was also apparent that dissatisfaction with the legal assistance provided (whether warranted or not) undermined inmates' faith in the legal system in general and Legal Aid/ALS lawyers in particular because they felt that they did not, and would not in the future, receive a fair defence.

A client's inclusion in the process of resolving their matter has been highlighted by previous research as an important aspect of the perceived quality of legal services (Hunter et al., 1999). In an examination of access to justice by the NSW Law Society, the Taskforce commented:

The public image of the legal profession is a key element of the community's evaluation of whether they will be able to access the justice system. The legal profession is seen as the gatekeeper to the justice system. Research conducted by the Law Society and others reveals that: solicitors are assessed by the community on the basis of a range of complex and interlinked factors such as … the way in which the solicitor communicates with and involves the client in the day to day work on the matter. (Law Society NSW, 1998, pp. 46–47)

In light of the evidence given in this report, regarding the limited opportunities prisoners have to interact with their lawyers, it is therefore not surprising that the importance of 'involvement' emerged as a theme in the discussion of inmates' ability to access justice. When, as the report quoted above suggests, evaluation of the quality of legal assistance partly depends on the degree of involvement of the client, the systemic environment described in Chapter 7 clearly works against this aspect of a satisfactory assessment. Accordingly, limited resources in the form of publicly funded lawyers may underlie some of the disempowerment felt by inmates in addressing their legal issues. It reduced the opportunities for adequate input from the inmate regarding their matters and, less directly, undermined their faith in a fair legal system.

One final area in which the theme of disempowerment of the inmate and inmate's legal needs was visible was in the cyclical nature of incarceration and the consequent accumulation of disadvantage. In Chapter 6 it was revealed how one occasion of imprisonment relates to the next period of incarceration through the incursion of legal problems prior to, and as a result of, prison, such as the lack of resolution of problems whilst inside and the stripping of the inmate of skills that may assist in them dealing with legal problems whilst in prison. Inmates also lose family support, friends, money, possessions, jobs, knowledge of current technologies and housing each time they are incarcerated, cumulatively compromising their ability to remain free of or to tackle effectively legal problems (Borzycki, 2005; Baldry et al., 2003). Consequently, there is an intimate and mutually harmful relationship between disempowerment and the legal needs of inmates as inmates move in and out and back into prison.

Disempowerment of inmates in addressing legal needs seems, from our analysis, to emanate from a number of areas: the divestiture of responsibility for tasks serving the resolution of legal needs; reinforcement of passive behaviour; cumulative disadvantage; and, an undermining of faith that the law can be an instrument of justice for them. In these ways, pathways to legal assistance from prison may both suffer from the disempowerment that often besets prisoners, as well as contribute to it. Consequently, policy makers would need to simultaneously look at engaging with the effects of disempowerment whilst attempting not to further exacerbate it when formulating policy to improve access to legal assistance for prison inmates.

Policy implications

One of the clearest directions for policy makers with respect to disempowerment and inmates' legal needs is to reduce the number of intermediaries required along pathways to legal assistance. Providing opportunities so that inmates may conduct independent research and progress their legal matters without requiring the intercession of others may not only restore a degree of autonomy and maintain/develop skills, but may also minimise delay and draw less on scarce human resources. The inclusion of the LawAccess telephone number on inmates' phone cards is an example of a strategy where inmates may directly obtain legal information and advice as they need it, enhancing their independence of DCS staff or others, and improving their levels of legal knowledge.

LawAccess is a free statewide (NSW) telephone service that provides legal information, advice and referrals. Legal officers can provide legal advice over the telephone, and/or refer the caller to another legal or related service that is appropriate to their needs. They can also send out information, discuss eligibility for Legal Aid and assist with making an application for Legal Aid. Inmates would then not only be in a better position to understand their legal matters and what they can do about them, but also assess the performance of counsel and the fairness of the outcome. Further, continuity of service with LawAccess from inside to outside prison (and vice versa) means that the inmate may be already familiar with the service and therefore more likely to use it once they leave prison.

To minimise the haphazard and consequently disempowering nature of the pathways to legal assistance, processes may need to be rationalised and personnel supported so that assistance is reliable, effective and is recognised as part of their duties. An essential element in this is the provision of adequate support to personnel providing information about legal problems (not legal advice, see definitions in Chapter 5) in the form of training and the availability of comprehensive and up-to-date information about pathways to legal assistance that is readily accessible and executable. In addition, introducing LIAC materials into prison libraries is another strategy which enables direct access to legal information. Further, both LIAC and LawAccess are resources which can also be directly accessed by inmates on the outside after their release from prison which affords a continuity that can bring confidence and trust in quality sources of information.

As noted in Chapter 6 inmates are accustomed to informal arrangements and/or conducting their affairs outside of the law, so they have little experience in using the law as a tool for their own benefit. Making inmates aware of their rights and how they go about ensuring them through such programs may empower them to be an active user of the law rather than a passive recipient of legal actions, circumventing future legal problems through early and effective action. Consequently, educating and skilling inmates in issues with legal implications such as financial literacy, welfare rights, family rights and obligations before they are released may also assist in the alleviating or avoiding legal problems post-release. One welfare officer who was also a financial counsellor described a program she devised that gave inmates information about how the SDRO and the Victims Compensation Tribunal function.

Finally, allowing inmates more time with their legal advisers may be another way in which inmates would be empowered in meeting their legal needs. Having sufficient resources to allow inmates enough time to convey their case to their lawyer, and discuss strategies in consultation with the inmate may assist inmate defendants in participating more fully and effectively in their legal matters.

Targeting and timing legal assistance

The previous three sections have described how barriers related to inmate capacity, the systemic environment, pathways to legal assistance and prison culture interact to produce an inversion between access and quality of assistance with legal problems and a mismatch between prisons, prisoners and opportunities to access justice, and the disempowerment of the inmate. The implications of these factors for policy makers and the strategies that need to be designed to assist the prevention and resolution of prisoners' legal needs were also outlined. However, imprisonment and being a prisoner is a dynamic rather than a static state and is only one (although often recurring) phase in a person's life. Consequently, strategies aimed at improving access to justice for inmates may be best targeted when the ebb and flow of legal needs, personal capacity and the environment in which the person is operating during the incarceration process, are taken into account.

To begin with, imprisonment itself can be seen as a 'circuit-breaker' whereby there is a hiatus in an increasingly chaotic lifestyle. In comparison to the often turbulent period prior to custody and the demanding times post-release, prison may represent an opportunity for services to be brought to the person when, relatively speaking, they may have an opportunity to address them. Such an approach resonates with a discussion of health care services in Australian prisons by Levy (2002):

The issue of access to health services presents a number of challenges to those responsible for inmate health care. Not only do prisoners have poorer access to health services in the community prior to incarceration (Glaser & Greifinger, 1993) but also, when they return to the community, they may encounter difficulties in obtaining medial care and social services (Warren et al., 1994). Given these realities, imprisonment, perversely, provides an opportunity to address the health needs of a group that is difficult to access in the community.' (Levy, 2002, p. 242)

Recognising imprisonment as just one stage in an inmate's life, the observations made above about health care may well also apply to the provision of legal care, particularly for family and civil issues.

Turning to the incarceration process itself, inmates generally move through different forms of custody: from police custody at arrest, to a remand centre if bail is refused, and then to a 'sentenced' jail once convicted. Virtually all prisoners are also released from custody, the majority within six months of their arrest. Following release, an inmate may be subject to parole or they may be discharged unconditionally. Accordingly, a prisoner's environment can change considerably as he or she moves through the incarceration process. It alters in terms of the demands it makes of inmates and in the barriers it presents to accessing legal assistance. Further, the types of legal problems inmates face and their own personal (e.g. cognitive) capacity to identify and address these legal issues also vary considerably as they move through these phases of imprisonment. Consequently, effective targeting of services to prisoners and ex-prisoners should take account of the changing needs, capacities and environments as inmates move through the incarceration process.

To assist service providers and policy makers in targeting resources and strategies to better meet the legal needs of prisoners, Table 10.1 (see page 280) summarises the legal issues, the state of the inmate, features of the environment, and the key barriers to legal assistance across the various key stages of incarceration: charge and detention, remand, sentenced, pre-release and post-release. The table illustrates and takes into account the ebbs and flows in: civil and criminal legal needs, personal capacity, and the systemic constraints affecting an inmate's access to justice at different points in the system.

Conclusion

It is clear from the statistics provided in Chapter 2 that prison inmates, as a group, are highly disadvantaged. At the aggregate level, they are under educated, have high rates of mental illness and intellectual disability, have drug and/or alcohol addictions and are financially compromised. Imprisonment tends to compound these disadvantages. Each time the person cycles through the justice system, personal supports are strained, skills atrophy, financial resources are depleted and the capacity to operate well 'on the outside' and without resort to unlawful means is further diminished. Many of the symptoms and causes of these problems have legal implications, with family breakdown, difficulties with housing, debt, conflict with government authorities all generating and reflecting the disadvantage that prisoners experience. However, there has been little research examining this group and their legal needs. This study has sought to address this dearth of knowledge and identify areas which may be amenable to improvement.

Our study drew upon the opinions and experiences of inmates, ex-inmates and the professionals who work with them. As a group, the sample of inmates and ex-inmates broadly reflected the disadvantaged population described in the literature: many had not completed a full school education and more than half had spent time in prison before. Our sample included men and women of various ages, Aboriginal people and people from non-English speaking backgrounds. We spoke to inmates in a range of custodial situations. Pertinent to this investigation, however, was that many of the inmate interviewees also had legal problems in addition to the criminal offence for which they were incarcerated. In many cases, they were dealing with a range of other criminal, family and civil law issues. These included debt, child access and residence, child support payments; immigration, loss of licence, AVOs, loss of personal property, and business related issues.

Our research indicated that there are both opportunities for addressing these legal issues as well as vulnerabilities in the systems that provide that redress. Opportunities for obtaining information about legal issues and how to address them were made available through the prison law library and its borrowing service at the MRRC, information provided by DCS, written information such as posters and pamphlets distributed by legal services and (since interviews ceased) through LIAC. Sources of legal assistance to inmates included private lawyers, Legal Aid including the PLS, ALS lawyers and Aboriginal field officers, and latterly, LawAccess. DCS support for prisoners to participate in legal processes came through the provision of transport to court for criminal matters, the tracking of court dates through OIMS, the implementation of the AVL system, and the work of welfare and other program staff.

Table 10.1: Summary of legal issues, state of inmate, features of environment, key barriers to addressing legal needs and policy implications, by stage of incarceration

Legal issues

State of prisoner

Features of the environment

Key barriers

Policy/service provision implications

Charged and in detention
Phase characterised by acute personal and legal crisis in the context of the prisoner experiencing impaired cognitive capacity and having very limited access to legal advice and support

May not seek or receive informal support because of distance, lifestyle, sense of shame, and/or belief that release is likely (on bail or because there will be no charge)

Crowded police/court cells that lack privacy for legal consultation

Little access to telephones

No access to library

Legal Aid available for bail but not for criminal matters at time of arrest

Limited time with duty lawyer at bail hearing

No or limited access to prison welfare support

Little access to legal information or advice about criminal charges, particularly for those without private representation at the time of arrest

Confidentiality compromised when speaking to legal adviser in police or court cells

Personal capacity may be limited by intoxication, shock, lack of appropriate medication for mental illness and anxiety but crucial statements may still be made

Limited financial capacity may impact on ability to get bail

Detention may be sudden and unexpected

Resources for longer appointment times with legal advisers, taking into account the often reduced capacity and high need of prisoners at this time

Training for lawyers about factors affecting prisoner capacity (e.g. drug and alcohol impairment, mental illness and the impact of a chaotic history or lifestyle)

Provision of time and space for private legal consultations in police cells

Assessment of and assistance with immediate non-criminal needs (e.g. housing, child care, employment, property and pets) especially if held in police cells for extended periods

Consideration of a legal advice service for prisoners with urgent civil/family legal issues in police/court cells where prisoners are held for extended periods

Remand
Phase characterised by a need to simultaneously address criminal issues and prevent or address civil/family issues when unfamiliar with the systems, suffering from a reduction in personal capacity (e.g. withdrawal and stress) and coping with imposed time constraints because of court dates and time limits for notifications

Criminal law

Bail

Housing (tenancy and mortgage payments)

Employment/ business related legal issues

Social security

Ongoing need to organise affairs relating to family and children

Prisoner continues to be in shock, and is feeling unsettled and highly anxious

Tendency to have informal arrangements for child care, property, housing and debt

May have limited knowledge of prison processes and culture

Most remandees in maximum security, which is a highly stressful environment

Phone cards may take time to be functional

Staff shortages lead to custodial officers being stripped from duties such as sorting the mail and setting up phone cards Vulnerable prisoners may be placed on protection, which has more restrictions on movement and limits out-of-cell hours

Restrictions on movement experienced within the correctional centre when first received due to monitoring by prison staff

Prisoner may not receive induction information because of lack of resources

Prisoners legal advice service has limited time to spend with each prisoner

Limited window of time for lawyers to attend prison (e.g. due to lockdown times) or for inmates to telephone lawyers (e.g the lockdown occurs in the early afternoon before the lawyers are out of court)

Prisoners cannot directly receive telephone calls in prison

Time limited telephone calls and a limited number of telephones available

Legal advice service lawyer may not be able to give advice outside his or her area of expertise e.g. on civil/family issues because he or she has specialised as a criminal lawyer

Frequent movement of prisoners between correctional centres may disrupt communication with lawyer and informal intermediaries

No internet access to legal information

Prisoners must use intermediaries for assistance with legal problems

Obtaining legal information from library may entail delays

Limited access to computer to read briefs

Transit to court long and may involve transfer to another prison (avoided if hearing by AVL)

Prison culture discourages use of custodial staff for information

Personal capacity may be limited by intoxication, shock, depression, anxiety, re-establishing psychiatric medication and uncertainty about time that will be spent in custody

Problems associated with phoning legal for advice because of prisoner classification, restriction on movement, delayed telephone approval, limited time available on telephones, competition for telephone use and lawyer not available during prison operating hours

Prisoners reliant on publicly funded legal services because of poor financial capacity — yet these services are limited by resources

Access to legal advice given in person reduced because of lockdown, prisoner classification, timeliness, movement between prisons and low resources of publicly funded legal services

Reduced capacity to give instruction to lawyers because of comprehension difficulties, privacy and limited time with adviser

May not receive legal mail in time to prepare for court because mail distribution is delayed (e.g. delays may occur because the officer responsible has been placed on security related duties during staff shortages)-

Intermediaries delay or fail to carry out tasks related to obtaining legal assistance

Reduced capacity to access legal information because of prisoner classification, restriction on movement and delayed responses to legal information requests

Difficulty understanding legal documents and court processes because of complexity, limited proficiency in English and literacy problems

Transportation to court hearing on trucks is highly unpleasant and prisoners may plead guilty to avoid it

Clear, reliable and timely information for prisoners about how to access legal assistance for civil, family and criminal law problems from jail

Strategies to ensure that prisoners in reception, segregation and protection can access legal assistance

Clear and consistent information and support for DCS staff about their role as a link to legal assistance (e.g. consideration of courses such as 'law for non-lawyers' for key custodial and other staff like Wing Officers, Welfare Officers and Community Corrections Staff)

Continuation of the PLS weekly visiting legal advice clinic, with funding to allow for longer appointment times

Continuation of visits by the ALS field officers

Maintenance of LIAC information and staffing in all prison libraries

Persons (staff and prisoner peers) who may assist prisoners to complete library request forms are clearly identified to prisoners and trained appropriately

Develop phone cards that are transferable between prisons

Consideration of ways to improve telephone communication between prisoners, legal and government services (e.g. instituting a message service for lawyers trying to contact prisoner clients and setting up special telephone numbers for prisoners without automated waiting periods)

Increasing the accessibility and availability of welfare staff/staff that can assist with welfare issues (e.g. advocacy and contact with government agencies)

Increasing the number of welfare staff/staff that can assist with welfare issues, including advocacy and contact with government agencies

Further explore and evaluate the use of AVL for the provision of legal advice services in prison

Improved systems of contact between prisoners and lawyers (e.g. reliable message system and mobile numbers)

Better access to forums for resolving civil/family matters

Calling in of warrants to enable the prisoner to serve time concurrently

Pre-release
Phase characterised by an increasingly urgent need to prepare and be eligible for release in the context of the prisoner experiencing anxiety concerning his or her release, partly stemming from an inadequate knowledge about the situation outside of prison

Securing parole

Outstanding debts

Identification documentation

Deportation and immigration issues

Outstanding warrants

Unpaid fines

May be more comfortable in prison than outside

May feel heightened emotions about leaving prison, either nervous or eager

Possible unrealistic expectations of post-release life

Lower security

May be placed in rural/regional location, which leads to increased costs of telephone calls, less access to non-local lawyers and more difficulty in making arrangements for post-release support

Limited information on civil/family law matters

Limited places in courses, which prisoners may need to attend so that they can be eligible for parole

Parole hearing conducted at a distance to prisoner's prison

Lack of access to up to date accurate legal information because of barriers to accessing a law library and/or out of date library content

Willingness to agree to parole conditions that can't be met

Less access to lawyers because of geographical location

Failure to attend court or parole hearing on the basis that, by leaving their current prison to attend their hearing, they will lose standing and privileges

Provide sufficient information/education about basic life skills, such as opening bank accounts, regaining a drivers licence, obtaining identification such as a Medicare card and accessing legal assistance outside of prison

Post-release
Phase characterised by an eagerness and a need to rebuild their life while having to deal with the reality of multiple obligations, few financial resources, absent or outdated skills, poor housing options and an unstructured environment

Complying with parole conditions

Social security debt and proving social security eligibility

Housing debt

Identification documentation

Outstanding fines and other debts

Police attention and harassment

Discrimination issues when trying to find employment and housing

Access/custody of children

Victims compensation restitution

Capacity to meet responsibilities reduced by lack of autonomy in prison

Deskilled

May be stressed, overwhelmed or fearful

Face recurring alcohol or other drug and/or mental health issues

Lack of support network due to release into a new area or relationships damaged prior to incarceration

No drivers licence

Stigmatised because of imprisonment

Reduced financial resources

Out of touch with current technology, procedures and social mores

Accustomed to acting passively and/or aggressively

May have few social supports and be tempted back to negative patterns of behaviour

May have made unrealistic arrangements/commitments that are prone to break down and may place them at risk of breaching parole conditions

More general support for prisoners upon release, including with housing, employment and reintegrating with family/community to assist in the prevention of parole breaches and going outside the law to meet needs

Upon release, all prisoners are provided with:
- LawAccess number
- PLS number (if need assistance to vary parole conditions)

Information for Community Corrections staff about legal services for their clients (at the very minimum, knowing about and giving out the LawAccess telephone number)

Consideration of courses such as 'law for non-lawyers' for Community Corrections staff

Information for support agencies/welfare staff about legal services available for their ex-prisoner (and other) clients. At the very minimum, giving out the LawAccess telephone number

Recognition by authorities of the multiple obligations that prisoners experience while trying to re-establish life outside prison

Vulnerabilities in access to justice for prisoners and ex-prisoners are also identified in this research. For example, the lower priority given to non-criminal matters, the extra legal issues that incarceration may generate and the risk of re-incarceration if legal problems are not addressed, all added to the burden of inmates' legal needs. From the present analysis, it also seems that there are vulnerable groups within the inmate population, such as those with comprehension difficulties, people on remand or in protection or segregation and those who had limited personal and/or financial resources. Finally, the pathways to assistance with legal problems were also at risk of disruption because of features of the prison environment: for example, DCS processes that clashed with processes of other parts of the systemic environment; processes that involved many steps or intermediaries; procedures that differed from prison to prison or changed with different personnel; processes that were not well resourced or that resourcing to them was not prioritised; and, the processes for which responsibility is not clear and/or accountable.

Facilitating access to justice for prisoners involves taking into account these vulnerabilities and noting where processes may be adjusted to avoid or strengthen areas of weakness. With respect to legal problems, the question is whether any processes may be instituted to minimise the generation of new problems (such as the automatic notification system of Centrelink, or facilitating periodic payments to the SDRO so that inmates can regain their driver's licence sooner after release) and services/education targeted at the most common legal issues encountered by inmates. Further, services need to be made available during the more stable, sentenced phase of incarceration so that inmates can address their (potential) legal issues before the demands of release and reintegration are upon them. Accordingly, some relatively simple adjustments to policy and practice by stakeholders may markedly improve the likelihood that inmates' legal problems may be addressed.

For groups at a particular disadvantage, such as people in protection or segregation or those with an intellectual disability, policy makers should examine whether current and planned practices and programs reach these people — a different mode of communication may be needed, longer appointments should be scheduled, or verbal information needs should to be supported by a written document and vice versa. From interviewees in this report, it would appear that there is a considerable range in terms of inmates' capacity with basic skills such as reading and writing, as well as their understanding of the law and the policies and procedures of prison. Consequently, a 'one size fits all' approach will not reach all inmates. Further, resourcing those people and services that are within easy and frequent contact with inmates (e.g. welfare and certain custodial staff) and/or ensuring reliable/efficient access to legally trained assistance would help avoid the often inverse relationship between the quality and accessibility of legal information and assistance.

There were also pathways to legal assistance that were vulnerable to breakdown: processes that were caught between different parts of the justice systemic environment; convoluted processes; processes that differed from prison to prison or altered with changing personnel; processes that were not well resourced; and processes for which responsibility was not clear. However, some of the circumstances that disrupt these pathways are unlikely to change or would take some time to change. Consequently, it is important that agencies work with these limitations and ensure that their processes are robust against the impact of security or the prison culture, and that there are ways of engaging with these processes. Service providers need to acquaint themselves with these issues and determine how best to negotiate these processes so that opportunities and time (their own and the inmate's) do not go to waste.

Finally, judicious timing of assistance and services may ensure that help comes when inmates can best capitalise on it and that legal issues are averted before they become problems. For example, skilling or re-skilling inmates in the management of their time, money and interactions with authorities before release may assist ex-inmates to remain independent and avoid resorting to solutions outside the law.

Consequently, satisfying legal need from within the prison environment can be a complex process. Isolation from services, the formal and informal regulation of movement and interactions, personal capacity and the tension between components of the justice system all affect how opportunities are exploited or missed. And there is no doubt that opportunities do exist for prisoners to address their legal needs and to prevent new problems from developing. Our research showed that many strategies are successful in bringing legal assistance to prisoners, by engaging with the prevailing conditions and working with the limitations concomitant with imprisonment. Whilst it is true that some of the circumstances that may work against access to justice for inmates may not change, or will only change slowly, it is certainly possible to successfully address the legal needs of prison inmates and bring the opportunity for justice to people held in custody.

Clearly we are not recommending in this report that non-legally trained people should give legal advice but rather that they should have enough knowledge to direct inmates down the correct pathway to legal help.

LIAC provides regularly updated standard legal collections and collection information including The legal toolkit a core plain language collection that is available in 300 locations, free legal pamphlets, and an annotated guide to sources of free legal advice and assistance. A listing of the exact materials to be supplied in prison libraries was not available at the time of writing. (Information source: pamphlet, The Legal Information Access Centre (LIAC) Access to quality legal information for the community)

64 Clearly we are not recommending in this report that non-legally trained people should give legal advice but rather that they should have enough knowledge to direct inmates down the correct pathway to legal help.

65 LIAC provides regularly updated standard legal collections and collection information including The legal toolkit a core plain language collection that is available in 300 locations, free legal pamphlets, and an annotated guide to sources of free legal advice and assistance. A listing of the exact materials to be supplied in prison libraries was not available at the time of writing. (Information source: pamphlet, The Legal Information Access Centre (LIAC) Access to quality legal information for the community)